IN RE: Application of Anthony GIOIA (1999)

Supreme Court, Appellate Division, First Department, New York.

IN RE: Application of Anthony GIOIA, Petitioner-Appellant, For a Judgment, etc., v. The NEW YORK CITY DEPARTMENT OF ENVIRONMENTAL PROTECTION, Respondent-Respondent.

Decided: December 21, 1999

NARDELLI, J.P., WILLIAMS, MAZZARELLI, WALLACH and LERNER, JJ.

Thomas F. Bello, for Petitioner-Appellant. Ellen B. Fishman, for Respondent-Respondent.

Judgment, Supreme Court, New York County (Barbara Kapnick, J.), entered June 19, 1998, which dismissed as time-barred the petition pursuant to CPLR article 78 seeking petitioner's reinstatement to his former position with respondent, unanimously affirmed, without costs.

The IAS court correctly determined that this proceeding seeking petitioner's reinstatement to his former probationary position as construction laborer with respondent was time-barred, since petitioner failed to commence the proceeding within four months of his termination (Matter of De Milio v. Borghard, 55 N.Y.2d 216, 448 N.Y.S.2d 441, 433 N.E.2d 506). In any case, petitioner, as a probationary employee, was terminable without a hearing at the discretion of respondent absent a showing that he was dismissed in violation of statutory or decisional law, or for unconstitutional reasons (Matter of York v. McGuire, 63 N.Y.2d 760, 761, 480 N.Y.S.2d 320, 469 N.E.2d 838), and no such showing has been made here.

MEMORANDUM DECISION.

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